“Belief” doesn’t cut it in asbestos cases

/ 27.Oct, 2014
The PA Superior Court issued its opinion today in Krauss v. Trane US, Inc., et al. in which the court upheld summary judgment for multiple defendants and, in doing so, reiterated the following principles of Pennsylvania law in relation to asbestos cases: 1. A plaintiff must establish exposure to asbestos on a regular, frequent and proximate basis pursuant to Eckenrod and Gregg; 2. Mere “belief” that a product contained asbestos, or unsupported speculation, is insufficient to establish asbestos content as set forth in Gibson, Samarin and Bushless; and 3. The “each and every” opinion is not viable to establish a defendant’s liability, there must be proof of more than de minimus exposure to a product to establish causation, and a reasoned, individualized assessment of the exposure history in opining about substantial-factor causation per Betz andHoward. The case involves a deceased 62 year-old mesothelioma plaintiff. Defendants moved for summary judgment arguing that evidence in the form of an affidavit and deposition testimony failed to establish exposure to asbestos fibers from their products on a regular, frequent and proximate basis. At issue was an affidavit and deposition testimony from a co-worker stating that he and the deceased plaintiff worked in the vicinity of the defendants’ products, which he believed to have contained asbestos. The court focused on the speculative nature of the co-worker’s “belief” regarding asbestos content, stating that the witness must present actual knowledge of the asbestos content of the product, i.e. he read “asbestos” on the package or the product. The court further highlighted that the plaintiff must present evidence of regular, frequent and proximate exposure, to which the co-worker at issue failed to testify. This opinion is an excellent review of the Pennsylvania case law for the above-enumerated issues in asbestos litigation. Fortunately, the opinion (unlike many preceding it) is published and therefore can be cited to in future cases. Gregory M. Stokes, Esquire (Krauss v. Trane US, Inc., et al.)